Opening Remarks

It’s important to understand that the Executive Orders of President Trump have not been drafted in a vacuum. These orders are part of a larger effort to not only curb immigration, but to also curb embedded constitutional and civil rights.

Kris Kobach, the Kansas Secretary of State, who has been advising Trump, has worked on Arizona’s infamous SB-1070 and has worked with various nativist groups to attack minority groups and prevent them from coming to the US. It should be clear that these Executive Orders are the work of a few individuals with a nationalist mindset, taking advantage of the broad powers that the President has with regard to safeguarding our borders, using national security as a smoke screen.

The reason why the Administration chose immigration as a starting point for unleashing its executive powers is because it’s low hanging fruit, not just from a political point of view, but as explained below, also from a legal perspective.

Kobach stated on PBS this week, that “foreigners do not have a constitutional right to enter this country. It’s a privilege, not a right”. This notion is the foundation on which this entire new attitude is built and the American public mostly agrees with this simplified version of immigration law.

Technically it’s not an incorrect statement, however, numerous constitutional protections do apply to immigrants and particularly permanent residents. It’s interesting to note that the Administration uses words such as foreigner, visitor or traveler to explain the controversial ban and to give the impression that many of the individuals being banned do not have significant ties to the United States. This approach minimizes the major constitutional problems with implementing such a broad ban, as well as the ban’s disastrous consequences. Specifically, in a tweet on February 2 the President referred to Syrian refugees in Australia as “illegal immigrants”, which is a nonsensical and illogical classification and this careless approach prevents any intelligent discussion about any subject.

With regard to other Orders dealing with detention and arrests, the Administration refers to the same people described above as aliens. Therefore, I believe it’s all a ploy to further gut our institutional framework and when discussing these Executive Orders, we need to be aware that we’re not falling into the trap of prioritizing one over the other. Moreover, there are more Orders coming very soon. These Orders may affect DACA, Parole in Place, the provisional waiver program, the H-1B visa and expanded scrutiny for visas. These Orders would be the start of a complete erosion of the entire immigration system.

The President is able to sign these Executive Orders so quickly in the field of immigration due to the fact that he has been given broad powers by the Immigration and Nationality Act (“INA”) to do so. In contrast to any other type of practice, such as criminal law, civil rights, education, environment or equal rights, the President has the power without an act of Congress to immediately interrupt all rights of “aliens”. INA Sec. 212(f) states that “whenever the President finds that the entry of aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or non-immigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”

Historically, the Presidents have used executive proclamations to bar entry to persons as well. Therefore this “ban” is not unique. For instance in 1999, the President suspended visa entry to Yugoslavian officials responsible for repression in Kosovo, Proclamation 7249, 64 FR 62561, (Nov. 12 1999). There have been numerous of these proclamations prior and after. However, these Executive Orders have always been narrowly tailored and always in response to a specific incident.

Kobach refers to previous laws and regulations that were drafted and implemented to target specific classes of aliens and refuse them entry to the United States as evidence that the United States has a long history of banning certain people. The earliest laws that he refers to are the Alien and Sedition Acts of 1798. These were four sets of laws. However, he fails to mention that three of the Acts were immediately repealed under Thomas Jefferson and the remaining Act, the Alien Enemies Act, was later used to imprison Japanese Americans in internment camps, for which President Reagan and the 100^th Congress had to apologize and offer restitution in the Civil Liberties Act of 1988.

Kobach, Spicer and Priebus are not wrong in saying that applying for admission to the United States is not a constitutional right. However, the Administration uses this phrase to justify trampling on the constitutional, civil and human rights of people who are involved in an immigration or non-immigration process. Even though applying for a benefit may not result in actually receiving the benefit, an individual still has certain rights that shall not and cannot be harmed. One can make a comparison to applying for a benefit under zoning law regulations or any other type of Administrative law.

These certain rights are Due Process Rights, Rights under the Convention of Torture, Rights to Family Unity, Rights under the Geneva Convention, 14^th Amendment Rights and so on.  

With these Executive Orders, persons are being denied these rights and as a direct consequence irreparable harm is being caused on not only “aliens’, but also on US citizens and our community as a whole.

Understandably, the public has focused on the “travel ban” from the seven identified countries, since it immediately created chaos, confusion and irreparable harm, but the other Executive Orders expanding the definition of “arriving aliens”, expanding the prospect of endless detention of non-criminals, cutting off funding to non-compliant municipalities, retracting DACA and increasing enforcement (including the border wall) are more harmful to the people who it affects directly, but potentially also jeopardize the safety and well-being of all people in our diverse communities.

I want to mention that in addition to the President, the Attorney General, the Secretary of State and the Secretary of Homeland Security are given wide latitude in immigration, deportation, detention and visa matters (INA Sec. 103). Considering the appointed Secretaries and the nominee for AG, these Executive Orders should be viewed in the perspective of a larger effort to restrict the civil liberties of all people involved, such as asylum seekers in or out of detention, visa applicants, applicants for citizenship, undocumented workers, green card holders with a minor criminal record, etc.

Moreover, the Immigration Courts (EOIR) fall directly under the jurisdiction of the Attorney General. The Court is not part of the judicial branch. An immigration judge is merely an adjudicator working for the Executive. With the new AG it can be expected that further tightening will be implemented. As an example, this may include new regulations on prolonged detention, which is now curtailed by the so-called “Rodriguez bond”, which is available to those who have been detained for more than six months. The AG may soon try to overturn this.  He won’t need an executive order.

As a result, the Bar needs to understand that the only recourse would be through the judicial system, which in this case is NOT the Immigration Court, but rather District Court and the Circuit of Appeals.

Final comment, when Congress confirms Judge Gorsuch to the Supreme Court, the judicial branch it is unknown if he’ll look favorably on extending Presidential powers.

We need to be aware that we’re being subjected to an unprecedented assault of executive power and that Congress won’t be able to halt this onslaught. We and “We the People” are the final defense.

Thank you.

I'm done

Sometimes, you just know. For me it was the end of February 2013. I was sitting at the attorney's table in Judge DeVitto's court room in the Eloy Detention Center. My client was a 68-year old man with arthritis who had lived in Arizona since 1971. He had been in Eloy before and was then granted voluntary departure. He was escorted to the border and returned a few weeks later in the summer of 2002. Now he had had another DUI and he was back in Eloy.

His wife and daughter had come to my office a few weeks earlier. They talked to me through an interpreter on the phone. The wife was crippled and in a wheelchair, the daughter was mentally handicapped.

From what they told me, it didn't seem right that this man was being held again and that he hadn't been granted status the last time he was in Eloy (in 2002). I thought I could get him out on bond and then sort out the rest. One DUI did not mean mandatory detention.

Boy, was I wrong. At the bond hearing, ICE brought in the entire criminal record and DeVitto refused to set bond, because he considered my client a danger and based on the criminal record he also didn't believe my client had a chance to win his case. What was that criminal record? Two possession of marijuana charges from May 4 and May 10, 1982 (the conviction from 1992 is silent as to whether my client is convicted of two separate charges - the record is unclear) and  a couple of DUIs from the 1990's and 2002.

Filing an appeal on the bond decision could take months and when we went back to court a few weeks later, DeVitto looked at me as if I was some kind of moron. He had this look of disdain on his face, while I was trying to make something out of nothing. I knew we were dead in the water with the two possession charges, if ICE could prove they were separate offenses. However, as I stated, the record was vague and no additional evidence was available from 1992. The ICE attorney, young and healthy, had nothing but arrogance in his body. There was no intelligence there, just righteousness. He pulled the new trump card that the 9th circuit had just given the government: Young v Holder. The case that has put everything upside down, the case that is putting a witch hunt to shame.

Young v. Holder! The decision by the 9th circuit that has ended fairness and justice in the immigration court proceedings. The decision that is the scratcher ticket that makes ICE an instant winner. With Young v Holder the government cannot lose. In the conclusion of Young v Holder, the 9th circuit states that when the record is inconclusive "it is possible that Petitioner’s prior conviction constitutes an aggravated felony; it is also possible that it does not". In other words, if it is unclear that you've done something, you'll have to prove that you didn't do it. If the record is inconclusive as to whether you're a witch, you'll have to prove that you're not. The court believes this to be a correct interpretation, because a Respondent in the court room has the burden of proof eligibility for relief. However, it is the world upside down, since it is in most cases impossible to prove a negative when the evidence is not available. OK, I may have understood the court's position with regard to an aggravated felony. However ICE and the Judges now use it for any possible bar to eligibility for relief. In this case two possible possession charges from 1982 (please note that the convictions are vague).

The Judge looked at me again and said "Mister Asser". I was silent. I felt my blood pressure, I needed to breath, my gut hurt, I clenched my ass, I wanted to fart and run. I looked down and literally hung my head. I don't know if anybody noticed, it happened within a few seconds, but then I answered "nothing further, your honor", thinking "go fuck yourself". That's when I realized. I was done. I will never set foot in Eloy again. If they need Young v Holder to win, if the government is being handed the authority by the 9th circuit to conduct a witch hunt, there's nothing more I can do. I give. I wish you well, but I don't want to have any part in this charade. I'm done.

10 Facts About the New Provisional Waiver Process

USCIS finally published the much-awaited rule on the unlawful presence waiver (I-601A), which will take effect on March 4, 2013. 

The new waiver process will allow the immediate relatives of U.S. citizens to apply for a provisional unlawful presence waiver while they are still in the United States and before they leave to attend their immigrant visa interview abroad. Under the old rule, applicants who are not eligible to adjust status in the U.S. to become lawful permanent residents must leave the U.S. and obtain an immigrant visa and unlawful presence waiver abroad. The current process involved a long wait and a lot of uncertainty as the applicant had to prove extreme hardship to U.S. citizen parent or spouse in order to win a waiver for unlawful presence to get back to the United States. The new process is intended to reduce the reluctance of non-citizens who may wish to obtain a green card through their marriage to U.S. citizens or relationship to a U.S. citizen parent, because the applicant would no longer be deterred by lengthy separation and uncertainty of success imposed by the process.

Under the new rule, an applicant must meet all of these requirements to qualify for the waiver:

Applicant must be present in the U.S. at the time they file for the waiver;
Applicant must prove hardship to U.S. citizen spouse or parent;
Applicant must be barred from readmission based only on unlawful presence in the U.S. and have no other grounds of inadmissibility;
Applicant must be a beneficiary of an approved immediate relative petition;
Applicant must have a case pending with the Department of State based on the approved immediate relative petition and paid the immigrant visa processing fee;
Applicant must depart from the United States to obtain the immediate relative immigrant visa; and
Applicant must be able to prove extreme hardship to her or his U.S. citizen spouse or parent.
After reading through the 148-page rule, here are a few things you should know about the new process:

The provisional waiver is limited to immediate relatives of U.S. citizens who can prove extreme hardship to the U.S. citizen:
Applicants for the waiver must be able to prove extreme hardship to a U.S. citizen spouse or parent. The extreme hardship to a U.S. citizen spouse or parent is a discretionary determination based on a totality of circumstances.

Many commentators argued for the provisional unlawful presence waiver to apply to certain additional family and employment based visa preferences. After all, the I-601 waiver is not limited to immediate relatives of U.S. citizens. However, DHS justifies limiting the provisional waiver process to immediate relatives of U.S. citizens because immigrant visas are always available for this category as opposed to preference categories. The DHS also hopes that the new rule would also encourage long-term LPRs to naturalize, so that their spouses, parents and children under the age of 21 can become immediate relatives and also benefit from the process.

The waiver is limited to waiver for unlawful presence, and not other grounds of inadmissibility:
Non-citizens who have other grounds of inadmissibility besides unlawful presence are not eligible for this new process but may nonetheless be eligible for the waiver and ultimately, an immigrant visa, through the existing process.

The waiver is available to non-citizens in removal proceedings who have their proceedings administratively closed or terminated:
Non-citizens in removal proceedings should have their proceedings administratively closed or terminated and apply directly to the USCIS for the waiver. For cases that have been administratively closed, the non-citizen should seek termination AND receive termination before departure from the U.S. to avoid triggering other bars of inadmissibility. The waiver is unavailable to applicants who have received deferred action but have final orders of removal or other grounds of inadmissibility beyond unlawful presence. Individuals with final orders of removal should seek to have their proceedings reopened and then administratively closed, in order to apply for the waiver with USCIS.

Interviews still scheduled abroad:
Under the new process, immediate relatives who have already departed the United States must pursue their waiver from abroad. Also, immediate relatives who are still in the U.S. must still depart the U.S. for the consular immigrant visa process. However, the immediate relatives who are in the U.S. can apply for the provisional waiver from within the United States and wait until it has been approved to depart the country so that they do not face lengthy separation from their families.

Non-citizens who have already been scheduled for their immigrant visa interviews at consulates abroad are ineligible for the provisional unlawful waiver process. However, if the DOS scheduled the immigrant visa interview after the publication of the final rule, the non-citizen can apply for a provisional unlawful presence waiver. An individual can also qualify for the waiver process in the U.S. if she or he has a new immigrant visa cases because DOS terminated the immigrant visa registration associated with the previous interview and they have a new immediate relative petition filed by a different petitioner.

The waiver is not limited to first-time filers:
The filing of the provisional unlawful presence waiver is not limited to those filing for the first time as DHS agrees that the one-time filing limitation that was initially proposed was too restrictive. Rather, when an applicant’s waiver has been denied or withdrawn, the applicant can file a new waiver with the appropriate fees. This is especially pertinent to cases where circumstances have changed since the first filing or the first filing was done through notarios or ineffective assistance of counsel.

Who is not eligible?
USCIS has specifically stated that the following non-citizens would be ineligible for a waiver:

Applicants under the age of 17
Applicants subject to other grounds of inadmissibility
Applicants who have already scheduled an immigrant visa interview abroad before the publication of this rule
Applicants who do not have an immigrant visa pending with the Department of State, based on the approved immediate relative petition and have not paid the immigrant visa processing fee
Applicants in removal proceedings, unless the proceedings are administratively closed
Applicants subject to final orders of removal
Applicants with pending applications to USCIS for adjustment of status
No non-removability clause:
For individuals who are denied a waiver, DHS will follow the NTA issuance policy in effect at the time of adjudication This means that individuals whose waiver request is denied or who withdraw before final adjudication will only be referred to ICE for removal proceedings if he or she is considered a removal priority by the agency, such as having a criminal history, engaging in fraud, misrepresentation, national security or public safety threat.

No appeal process:
There is no appeal for denial of an I-601A waiver. However, in the event of denial, there are several alternate avenues such as filing a new form I-601A with the required fees or filing a form I-601 after attending the immigrant visa interview abroad and after the department of State determines that the individual is inadmissible. The I-601 can be appealed to the Administrative Appeals Office of CIS.

No right to employment authorization or parole upon the filing of a waiver:
A pending or approved provisional waiver does not create lawful immigration status, extend an authorized period of stay or protect non citizens from removal or grant any other immigrant benefit such as employment authorization or advance parole.

Filing fees for the process will be $585, plus a biometrics fee.
There are no fee waivers available for the process.

The new procedure does not take effect until March 4, 2013. Before filing any waiver application, it is advisable that you consult with an immigration lawyer.

My letter to Senator Schumer from 2009

In 2009, I sent the following letter to Senator Chuch Schumer. Nothing changed. It would be interesting to see what happens now.

December 8, 2009

Dear Senator Schumer,

My name is David Asser. I'm an immigration attorney in Phoenix, Arizona. I’m asking for your attention to the promises of this new Administration with regard to our current immigration system to “fix the dysfunctional immigration bureaucracy and enable legal immigration so that families can stay together”.

Based on my experience as a lawyer this promise sounds incredibly hollow in light of what is currently happening in this country every day. The US Department of Homeland Security (“DHS”), in particular Immigration and Customs Enforcement (“ICE”) and Citizenship and Immigration Service (“CIS”) continues to position itself as an Enforcement Only agency with no regard to the consequences to US citizen family members, mostly minor children who continue to suffer beyond belief when families are torn apart.

It is hard to fathom that Trial Attorneys in Immigration Court are actually representing the Executive Branch, when they show no mercy or compassion, contrary to message of the White House. Moreover the Executive Office for Immigration Review (“EOIR”) routinely holds on appeal that the extreme hardship that is suffered by US citizen children when their parents are being deported is not sufficient to warrant the “Cancellation of Removal”. The bar of “exceptional and extremely unusual hardship” is set so incredibly high that almost no one satisfies the burden.

Since Comprehensive Immigration Reform seems unlikely to happen any time soon, I would like you, in your capacity of Chairman of the Sub-Committee on Immigration of the Judiciary Committee to specifically review the consequences of the enactment of fourth requirement the Cancellation of Removal provision of the Immigration and Nationality Act (“INA”), Section 240A(b).

Cancellation of Removal for certain Non-Permanent Residents was enacted in 1997 in INA 240A(b), (8 USC §1229b):

 
(1) IN GENERAL.-The Attorney General may cancel removal of, and adjust to the status of an alien lawfully admitted for permanent residence, an alien who is inadmissible or deportable from the United States if the alien-

(A) has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application;

(B) has been a person of good moral character during such period;

(C) has not been convicted of an offense under section 212(a)(2), 237(a)(2) , or 237(a)(3) , subject to paragraph (5) 2a/ 5/ ; and

(D) establishes that removal would result in exceptional and extremely unusual hardship to the alien's spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.

The standard as set forth under “D” can hardly be met by a healthy, well-adjusted minor child. It cannot even be met by a child that is suffering from depression resulting from the ongoing and immediate threat of deportation of a parent. EOIR has ruled that a person “must show more than extreme hardship”.

As such, I would respectfully request that you strive to reinstate discretion to the Immigration Judge by lowering the standard to “extreme hardship”, allowing a Judge to actually balancing the equities with any negative factors. I would ask you to immediately introduce a bill to amend this Section of the INA. This act alone will reduce the amount of suffering and injustice that is being experience by US born children whose parents happen to have entered this country without the proper documents and who decided to stay in order to create a better life for these children.

Changing INA 240A(b) will not have an inviting effect on future illegal immigrants, since the Section is limited to those who have been in the US for more than ten years. Moreover, its scope is limited to those who have good moral character and haven’t committed any deportable crimes. Such change would not have a negative impact on any government resource. On the contrary, it would allow cases to run faster through the system, bringing people out of the shadows and into society, which can only be considered positive.

On November 17, 2009 I represented another family in Immigration Court, and although this is a beautiful family with three US citizen children, ICE opposed a grant of Cancellation of Removal, although the trial attorney admitted that this was a heartbreaking case and I anticipate that the Immigration Judge will not rule in favor of my client. The question then becomes, “are we that kind of society?” I didn’t think so.

In the absence of any Comprehensive Immigration Reform and/or detailed changes to the current law, as referenced above, I would urge you to ask the Administration to provide immediate guidance to its agencies to implement its philosophy of compassion and family unity to provide Temporary Protected Status to those who could qualify for Cancellation of Removal until further guidance has been given.

Sincerely,

David Asser

Attorney at Law

Big Bird

The reason why President Obama lost the debate last night can be summed up in two words: Big Bird. Not even 10 minutes into the debate, Mitt Romney looked Jim Lehrer, the moderator, in the eye, told him that he liked him and that he liked Big Bird, but that if he were President he would get rid of both of them.

Who else can look Big Bird in the eye, tell him that he liked him, fire him and then feel good about that? Right, Donald Trump. President Obama should have used this incredible opportunity to reveal the true character of Mitt Romney: someone who can look you in the eye, smile and complement you and then fire you to save his bottom line. That person is not a President, that person is a Donald Trump. The debate would have taken a completely different turn. Opportunity wasted.

Getting rid of PBS funding is hardly job creation and I'm puzzled as to why the President wasn't able to think on his feet and grab the opportunities he was given by Romney to expose the nonsense that Romney is preaching.

Deferred Action Update

On June 15, 2012, Secretary Napolitano announced deferred action for the "dreamers". We were supposed to get further guidance on August 1, 2012. Well, today is August 1, 2012 and there's no guidance.

Rumors vary with regard to the process, the fees, the forms and what documents will be required. There are already scams in the works to charge people tremendous amounts of money for this program and applicants are being lied to regarding what this program will do for them.

I expect that guidance will come soon, but until then, please be careful and stay tuned.

What is Deferred Action under new DHS Directive of June 15 2012?

What is Deferred Action under new DHS Directive of June 15 2012?

If this is affirmative deferred action, similar to Temporary Protected Status or TPS (without armed conflicts and earthquakes) it should be handled by USCIS. However, there isn't a provision in the INA that would support this. If this is PD though ICE, we’re dealing with the discretion not to issue a Notice to Appear.

How is Prosecutorial Discretion Defined?

“Prosecutorial discretion” is the authority of an agency charged with enforcing a law to decide whether to enforce, or not to enforce, the law against someone. DHS, like other law enforcement agencies, has prosecutorial discretion and exercises it every day. In the immigration context, the term applies not only to the decision to issue, serve, or file a Notice to Appear (NTA), but also to a broad range of other discretionary enforcement decisions, including among others: Focusing investigative resources on particular offenses or conduct; deciding whom to stop, question, and arrest; maintaining an alien in custody; seeking expedited removal or other forms of removal by means other than a removal proceeding; settling or dismissing a proceeding; granting deferred action or staying a final order; agreeing to voluntary departure, withdrawal of an application for admission, or other action in lieu of removing the alien; pursuing an appeal; and executing a removal order.

What is Favorable Discretion?

The “favorable exercise of prosecutorial discretion” means a discretionary decision not to assert the full scope of the DHS’ enforcement authority as permitted under the law. Such decisions will take different forms, depending on the status of a particular matter, but include decisions such as not issuing an NTA (discussed in more detail below under “Initiating Proceedings”), not detaining an alien placed in proceedings (where discretion remains despite mandatory detention requirements), and approving deferred action.

As a law enforcement agency, DHS generally has prosecutorial discretion within its area of law enforcement responsibility unless that discretion has been clearly limited by statute in a way that goes beyond standard terminology.

Does Prosecutorial Discretion grant status?

It is important to recognize not only what prosecutorial discretion is, but also what it is not. Prosecutorial discretion does not apply to affirmative acts of approval, or grants of benefits, under a statute or other applicable law that provides requirements for determining when the approval should be given. For example, the DHS has prosecutorial discretion not to place a removable alien in proceedings, but it does not have prosecutorial discretion to approve a naturalization application by an alien who is ineligible for that benefit under the INA.

This distinction is not always an easy to understand. In many cases, DHS decision making involves both a prosecutorial decision to take or not to take enforcement action, such as placing an alien in removal proceedings, and a decision whether or not the alien is eligible for a benefit under the INA. In many cases, benefit decisions involve the exercise of significant discretion which in most cases is not judicially reviewable.

What is the New Policy of June 15, 2012?

The Deferred Action policy of June 15, 2012 is based on previous policies, discussed above and should not be confused with a grant of status, amnesty, a benefit under the INA or otherwise protected status. It merely creates a class of people who the Administration believes should not be issued a Notice to Appear and be put in removal proceedings. And as such, the Administration feels that these people might as well apply for a work permit, as long as the deferred action policy is in effect.

Who qualifies?

Under the directive issued on June 15, 2012, individuals who demonstrate that they meet the following criteria will be eligible for an exercise of discretion, specifically deferred action, on a case by case basis:

• Came to the United States under the age of sixteen; 
• Have continuously resided in the United States for a least five years preceding the date of this memorandum and are present in the United States on the date of this memorandum;
• Are currently in school, have graduated from high school, have obtained a general education development certificate, or are honorably discharged veterans of the Coast Guard or Armed Forces of the United States; 
• Have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety; 
• Are not above the age of thirty.

Conclusion

Many misconceptions about the new policy have already been floating around. This is not an Executive Decision, this is not Amnesty, this is not a pathway to citizenship, this is not the Administration going around Congress, this is not an unconstitutional act. This is merely an enforcement directive, option not to issue an NTA to certain individuals and have these individuals apply for a work permit, while the directive is in effect, which appears to be for a period of two years.

References

Prosecutorial Discretion Memo HQOPP 50/4, Published Nov. 17, 2000;

Standard Operating Procedures for Enforcement Officers: Arrest, Detention, Processing, and Removal (Standard Operating Procedures), Part X;

Principles of Federal Prosecution, chapter 9-27.000 in the U.S. Department of Justice’s United States Attorneys’ Manual (Oct. 1997).